ML20054A615
| ML20054A615 | |
| Person / Time | |
|---|---|
| Site: | South Texas  |
| Issue date: | 04/13/1982 |
| From: | Bechhoefer C, John Lamb Atomic Safety and Licensing Board Panel |
| To: | Citizens Concerned About Nuclear Power, INC. |
| References | |
| ISSUANCES-OL, NUDOCS 8204160009 | |
| Download: ML20054A615 (12) | |
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Id IO T' UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
SERVED APR 4)ggg 1
Charles Bechhoefer, Chairman Dr. James C. Lamb Mr. Ernest E. Hill
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In the Matter of
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HOUSTON LIGHTING AND
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Docket Nos. STN 50-498 OL POWER COMPANY, ET AL.
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STN 50-499 OL
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'N (South Texas Project
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Units 1 and 2)
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April 13, 1982 g
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E RScsivy3 f h 1982A MEMORANDUM AND ORDER n
(Denying CCANP Motion for scaE Q p4 y Judge Ernest Hill to roc Recuse Himself) 1 y,
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g On March 9,1982, Citizens Concerned About Nuclear Power (CCANP), an intervenor in this operating license proceeding, filed a motion for Judge Ernest E. Hill, a member of the presiding Atomic Safety and Licensing Board, to recuse himself from further participation in this proceeding. As origi-nally filed, the motion did not include any affidavits, as are required for such motions by 10 C.F.R. 62.704(c).
Subsequently, however, on March 24, 1982, CCANP filed the affidavit of Lanny Alan Sinkin, one of its 8
1 8204160009 820413 b
l PDR ADOCK 05000498 G
. representatives, in support of its motion.E The Applicants (by response dated March 23,1982) and the NRC Staff (by response dated March 30,1982)2,/ oppose the motion. Citizens for Equitable Utilities (CEU), another intervenor, has not responded to CCANP's motion. As set forth in his separate statement attached hereto, Judge Hill has declined to recuse himself, and the remainder of the Board has found the motion totally to lack merit.
Hence, we are denying the CCANP motion.
In accordance with 10 C.F.R. 2.704(c), we are referring this Memorandum and Order to the Appeal Board for its review.
1.
A motion for a Board member (such as Judge Hill) to disqualify himself from further participation in a proceeding is governed by 10 C.F.R. 52.704(c), which provides (in relevant part):
(c)
If a party deems the presiding officer or a designated member of an atomic safety and licensing board to be disqualified, he may move that the presiding officer or the board member disqualify himself. The motion shall be supported by affidavits setting forth l
the alleged grounds for disqualification.
If the presiding officer
-1/ The Appeal Board has forcefully indicated the importance of the affidavit requirement and the necessity for affidavits, to " reduce [ ]
the likelihood of an irresponsible attack upon the probity or objectivity of the Board member * * *." Dairyland Power Cooperative (La Crosse Boiling Water Reactor), ALAB-497, 8 NRC 312, 314 (1978), quoting
- from Duquesne Light Co.
(Beaver Valley Power Station, Units 1 and 2),
ALAB-172, 7 AEC 42, 43 (1974). Although we are according little weight to the "information and belief" portions of the affidavit filed by Mr.
Sinkin, we are accepting the affidavit (belated though it was) as fulfilling the requirement of 10 C.F.R. 2.704(c).
On April 8,1982, af ter preparatior, of the initial draf ts of this opinion, we received an additional affidavit, from another of CCANP's represent atives.
We have examined that affidavit and conclude that it e
asserts no evidence of bias.
-2/ On March 29, 1982, we granted the Staff's telephone request for an extension of time to April 1, 1982, to file a response, to enable the Staff to comment on Mr. Sinkin's affidavit.
, does not grant the motion or the board member does not disqualify himself, the motion shall be referred to * *
- the Atomic Safety and Licensing Appeal Board, * *
- which will determine the sufficiency of the grounds alleged.
Procedurally, that section would seem to establish two avenues for a Board to approach a motion which calls for the recusal of one Board member (and not of the entire Board).
First, it provides an opportunity for the Board member to disqualify (or recuse) himself.3/
It also appears to call upon the " presiding officer"--i.e., the Board--to rule on the motion.
In any event, if the Board member does 'not recuse himself, and if the motion is not granted, the motion must be referred to the Appeal Board, for determination of the " sufficiency of the grounds alleged".
Several recent Commission decisions have held, in the situations there presented, that the determination whether a Comissioner or an Appeal Board member should disqualify himself from a proceeding should be that of the individual Commissioner (rather than the Commission) or the individual member (rather than the Appeal Board).
Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-80-6,11 NRC 411 (1980)
(Commissioner); id., CLI-80-9, 11 NRC 436, 437 (1980) (Apeal Board member);
_id., CLI-80-ll, 11 NRC 511 (1980) (Appeal Board member).
That approach may be one way of dealing with a motion of the sort which we have before us, although it also may be a reflection of the particular circumstances of the single proceeding which generated those decisions. On the other hand, that decisional method would negate one of the two avenues for relief which seem to be encompassed within 10 C.F.R. 2.704(c).
It appears to leave entirely l
i
-3/ Such recusal would be effectuated in the manner set forth in 10' C.F.R.
2.704(b).
to the Board member the determination as to whether he is legally disqualified from serving on a Board.
In our view, the Board member should in the first instance make that determination.
If he decides not to recuse himself, however, the rest of the Board--sitting as a quorum without the questioned member--should also be given the opportunity to determine whether the accusations have merit and, if so, are legally disqualifying.
Cf. Nuclear-Engineering Co. Inc.
(Sheffield, Ill., Low-Level Radioactive Waste Disposal Site), ALAB-494, 8 NRC 299, 301 (1978).
Inasmuch as there' appears to be no controlling precedent in this matter, we have followed this two-stage procedure in ruling upon the instant CCANP motion, as the method most likely to effectuate the intent of 10 C.F.R. 2.704(c).
2.
The Appeal Board long ago succinctly outlined the grounds under which a Board member may be disqualified under 10 C.F.R. 2.704(c):
[A]n administrative trier of fact is subject to disqualification if he has a direct, personal, substantial pecuniary interest in a result; if he has a
" personal bias" against a participant; if he has served in a prosecutive or investigative role with regard to the same facts as are in issue; if he has prejudged factual -
as distinguished from legal or policy - issues; or if he has engaged in conduct which gives the appearance of personal bias or prejudgment of factual issues.
Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-101, 6 AEC 60, 65 (1973).
See also Sheffield, ALAB-494, supra, 8 NRC at 301.
CCANP has-described essentially two reasons for Judge Hill's alleged " lack of impartiality" or " overt hostility" which cause it to seek his recusal; but 4
neither of those grounds, even if substantiated, constitutes a valid basis for disqualification under the Midland criteria.
CCANP refers first to Judge Hill's employment by Lawrence Livermore National Laboratory as creating an " inherent bias" (affidavit,110).
In the
. same vein, in its motion, although not in its affidavit, CCANP describes the Laboratory as "an institution which is part of the nuclear industry".
CCANP is mistaken on two counts: Lawrence Livermore National Laboratory is not operated by industry but, rather, by the University of California.
And employment in a national laboratory has long been recognized by the Commission as not constituting per _se a ground for disqualification.
Toledo Edison Co. (Davis-Besse Nuclear Power Station), 4 AEC 555 (Atomic Energy Commission,1971) (affiliation of a Board member with Oak Ridge National Laboratory); Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), 4 AEC 441 (Atomic Energy Commission,1970).
In the latter case, the Commission explicitly stated that "[t]he f act that [ASLB] members are persons having involvement in the nuclear power field is not a ground for disqualification".
4 AEC at 442.
Indeed, the Commission went on to emphasize that, since the inception of Licensing Boards, it "has turned for qualified board members to such sources as persons in the academic comunity with nuclear experience, technical and scientific personnel from AEC [now c
DOE]-owned but privately run national laboratories and appropriate persons from private industry." M.at443.
As its second reason for disqualification, CCANP alleges that Judge Hill has consistently and erroneously ruled against it on various matters and, in addition, has attempted, forcefully and sometimes successfully, to convince other members of the Board to do likewise. CCANP does not particularize these charges, except perhaps with respect to a series of Board rulings concerning the scheduling of hearings on the Quadrex Report--and does so superficially and incorrectly in those instances. The
. charges can thus be characterized as no more than " broad and vague assertions" which, given the gravity of a disqualification motion, must be accorded little, if any, weight:
"[a] party leveling a charge as serious as that of bias against a licensing board or its members has a manifest obligation to be most particular in establishing the foundation for the charge * * *." Beaver Valley, ALAB-172, supra, 7 AEC at 43. Moreover, CCANP makes no attempt to substantiate its allegation that some of its legitimate rights were prejudiced by Board rulings.
Evcn were CCANP able to establish that some or all of the Board rulings in question were erroneous and also prejudicial to its rights, it is well settled that incorrect rulings alone do not establish bias.
"To establish that a hearing was biased, something more must be shown than that the presiding officials decided matters incorrectly; to be wrong is not necessarily to be partisan." Northern Indiana Public Service Co. (Bailly Generating Station, Nuclear-1), ALAB-244, 8 AEC 244, 246 (1974); Tennessee Valley Authority (Bellefonte Nuclear Plant, Units 1 and 2), ALAB-164, 6 AEC 1143, 1144 (1973). We might add that CCANP has not established such Board errors, nor prejudicial findings. Further, its stated concern about Judge Hill's affiliation with Lawrence Livermore National Laboratory represents a circumstance that, as we have shown, is clearly not legally disqualifying.
In sum, CCANP has advanced no ground which should lead Judge Hill to recuse himself or this Board to find him disqualified.
3.
Judges Bechhoefer and Lamb also take strong exception to the statements in CCANP's motion and Mr. Sinkin's affidavit which imply that certain determinations made by them (not further particularized) were the
. product of the improper influence cf or " domination" by Judge Hill rather than of their own best judgment.
That is not the case.
The occasional exchanges to which CCANP may be referring represent no more than the normal interchange between persons who may have differing views on complex questions which are rarely susceptible of black-and-white resolution.
We resent the implication that our decisions were not based on our best judgement. Furthermore, Mr. Sinkin's "information and belief" statements concerning the Board's decisional process on the scheduling of hearings on the Quadrex matter (particularly Judge Hill's role in those determinations) are patently incorrect. As our two opinions on this matter indicate, the Board ruled unanimously.
See Fourth Prehearing Conference Order dated December 16, 1981, and Memorandum and Order (Denying CCANP Motion for Reconsideration of Schedule for Hearing Quadrex Matters), dated March 25,1982.S/
As set forth in the attached separate statement, Judge Hill declines to recuse himself from further participation in this proceeding.
For the reasons stated in the Board's opinion, it is, this 13th day of Apri l, 1980 l
l ORDERED 1.
That CCANP's motion for Judge Hill to recuse himself is denied.
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-4/ We do not regard it as appropriate to air the details of the Board discussions relating to this decision.
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8-2.
That, pursuant to 10 C.F.R. 2.704(c), CCANP's motion, together with this Memorandum and Order and Judge Hill's separate statement, are referred to the Appeal Board.
ATOMIC SAFETY AND LICENSING BOARD LA. M" Tr. James C. Lamb, Member j
ADMINISTRATIVE JUDGE AnAew 4$$w J Cliarles Bechhoefer, Chairgan ADMINISTRATIVE JUDGE Issued at Bethesda, Maryland Judge Hill did not participate in formulating or drafting sections 2 and 3 of this opinion.
Judge Hill's separate statement follows, pp. 9-12.
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. Separate Statement of Judge Hill I fully subscribe to the reasons set forth in the opinion of Judge Lamb and Judge Bechhoefer for denying the CCANP motion.
I wish to provide further comment on what I consider to be a personal and unwarranted attack on my professional and moral integrity.
In September 1978, the Nuclear Regulatory Commission established this Licensing Board to rule on intervention petitions. The same Board was later authorized to conduct hearings on the application by Houston Lighting and Power Co. e_t al_. to operate the South Texas Project.
(April 9, 1979).
On September 22, 1980, the Commission further directed this Board to conduct expedited hearings on issues arising from the Show Cause Order of April 30, 1980. CLI-80-32,12 NRC 281. The then-constituted Board, which earlier had adopted two contentions of CEU and CCANP relating to potential construction and QA deficiencies, then formulated six additional issues, based on CLI-80-32, to be considered in this expedited hearing.
The sum total of these contentions and issues constituted a rather narrow spectrum of issues to be heard in an expedited manner, leaving the
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remainder of the OL proceeding to be heard at a later date.
On March 11, 1981 the hearing board was reconstituted in order to replace Dr. Emmeth A. Luebke with Ernest E. Hill. 46 Fed. Reg.17319 (March l
18,1981). Previously adopted contentions and issues remained unchanged and
,the case went to evidentiary hearing on May 12, 1982.
From the_ outset, the representatives for CCANP have in many instances actively subverted the stated objectives of this expedited proceeding by
. being unduly contentious with matters having little, if any, bearing on the admitted contentions.
In addition to the contentions admitted for adjudication by this Board, they have provided a constant flow of additional and largely unsupported allegations against various principals in this case.
In many instances, the CCANP representatives have conducted needlessly long and unproductive cross examination of various witnesses and on several occasions have been unwilling to heed the advice or admonishment of this Board to cease such delaying and obstructing actions.
(See,e.g.,Tr.
9981-9983 (January 22,1982).)
In addition to these delaying and harrassing actions, the representatives for CCANP have blatently used this proceeding as a forum to present CCANP's political views on subjects not at issue, at least in this expedited phase of the case.
In particular, they have attempted to inject the internal aolitical issues of the cities of Austin and San Antonio into this proceeding.
In my opinion, the representations of this Board member to the Chairman on several occasions to limit the subverting actions of the representatives l
of CCANP have lead to this charge of bias.
Indeed, those representatives have chosen to misinterpret my objections to this misuse of the proceeding l
as a bias against CCANP.
The other claim of bias made against me, based on my career field and place of employment, is most unfortunate.
I have spent over twenty-five
, years in the field of nuclear safety.
I feel that I have made at least some modest contribution to the safe design, construction, and operation of
. nuclear systems.
I particularly resent the implication that the choice and pursuit of this career field in some way raises doubts about my professional moral integrity.
The Atomic Safety and Licensing Board Panel (ASLBP) has, since its inception, relied heavily on the services of nuclear scientists and engineers chosen from the Atomic Energy Commission and later the Department of Energy National Laboratories.
There have been more than ten nuclear scientists or engineers chosen from the National Laboratories to serve on the ASLBP.
Of these, five have been selected from the Los Alamos National Laboratory or the Lawrence Livermore National Laboratory, both operated by the University of California.
I am proud to be one of those selected from these laboratories and feel strongly that such a background does not, in any way, constitute bias against any party to this case.
The charge that the Lawrence Livermore National Laboratory is "part of the nuclear industry" is one that would be objected to by the Department of Energy, the University of California, the Lawrence Livermore National Laboratory and, indeed, by the " nuclear industry" itself.
CCANP and its representatives can be assured of three conciusions from this unfortunate aff air:
First, I have not in the past nor have I now any bias against CCANP or its representatives; second, I will not disqualify i
myself from this case; and third, I will continue my efforts to effectively complete this proceeding in an orderly and timely manner, as directed by the Commission.
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i Based on the legal considerations discussed in the Board's opinion, together with the additional comments provided in this separate statement, I decline to grant CCANP's request that I recuse myself from further participation in this proceeding.
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I Ernest E. Hill, Member ADMINISTRATIVE JUDGE i
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